A. Aruna vs The State Of Telangana And 5 Others
2021 Latest Caselaw 402 Tel

       THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

                  WRIT PETITION No. 24042 of 2020

ORDER:

This writ petition is filed challenging the action of the

Telangana State Election Commission, respondent No. 2 in

bifurcating Begumpet Division, Ward No. 149 by adding at least

217 votes of that division to Ramgopalpet Division, Ward No. 148

in Booth No. 1 in the GHMC Elections held on 01.12.2020 as

contrary to the provisions of Act No. 20 of 2020, dated 16.10.2020,

illegal and unconstitutional.

The case of the petitioner is that she was elected as Sitting

Ward Member (Corporator) of Ramgopalpet Division, Ward No. 148,

Secunderabad in the month of February, 2016 and her term ends

in February, 2021. The respondent No. 2, vide reference No.

1294/TSEC-ULBs-GHMC/2020-1&2, dated 17.11.2020,

announced the schedule of elections for the GHMC area. She had

filed her nomination with B-Form certificate issued by the TRS

Party and contested the elections held on 01.12.2020. For the

purpose of conducting the elections, Act No. 20 of 2020, dated

16.10.2020 was enacted to amend the GHMC Act, 1955 whereby

Section 5 of Act II of 1956 was amended. As the Act has given the

effect of retrospective operation, it is deemed to have come into

force from 06.01.2016. By virtue of the same, the GHMC elections

in 2020 should be held exactly on the same lines as the GHMC

elections of 2016. However, the respondent No. 2 had bifurcated

the voters of Begumpet Division, Ward No. 149, pertaining to

Booth Nos. 11, 12 and 13 of Sanathnagar Assembly Constituency -

62 to Ramgopalpet Division, Ward No. 148 with a mala fide

intention to help the respondent No. 6, who won the elections for

Ward No. 148. Immediately, the petitioner made a representation

to the Assistant Election Authority and Deputy Commissioner,

respondent No. 4 with a request to shift Booth Nos. 11, 12 and 13

from Ramgopalpet Division, Ward No. 148 to Begumpet Division,

Ward No. 149. However, the respondent Nos. 2 to 4 have

bifurcated the Begumpet Division, Ward No. 149 by including 217

voters of that division in the Ramgopalpet Division, Ward No. 148.

According to the petitioner, this was done contrary to the

legislative mandate which requires that the Wards to remain

exactly the same as they were in 2016 GHMC elections. But, the

respondent No. 2 has flouted the provisions of Act 20 of 2020,

dated 16.10.2020 with impunity. According to the petitioner, the

margin between the elected candidate, namely respondent No. 6

and the petitioner is only 310 votes. Had the respondent No. 2

adhered to the provisions of Act 20 of 2020 and restrained his staff

from meddling with the Electoral Rolls and shifting the votes from

Ward No. 149 of Begumpet Division to Ward No. 148 of

Ramgopalpet Division, the results would have been different.

Although the petitioner has submitted a representation to the

respondent No. 2 on 17.12.2020, pointing out the flaws in the

conduct of elections and requested to cancel the elections in

respect of Rampopalpet Division, Ward No. 148, no action has

been taken. Therefore, the petitioner seeks to declare the elections

to Ward No. 148, Ramgopalpet Division as null and void.

Mr. P. Sudheer Rao, learned Standing Counsel for Telangana

State Election Commission for respondent No.2, on instructions,

submitted that allegations which were levelled against the

respondent No.2 are absolutely false, frivolous and baseless. He

has further submitted that the respondent No.2 has acted

independently without anybody's interference, as per the rules and

regulations and as per the provisions of the Act. He has further

submitted that the present petition under Article 226 of the

Constitution of India is not maintainable and an alternative

efficacious remedy is provided under the Act, whereby the

petitioner can challenge the election by way of filing election

petition before the Election Tribunal.

Mr. C. Naresh Reddy, the learned counsel appearing for the

respondent No. 6, on the other hand, submitted that the petitioner

having participated and lost in the elections has approached this

Court by way of filing the present writ petition. At no point of time,

the petitioner has made any objections regarding the alleged

delimitation/bifurcation of wards. The learned counsel while

contending that no election to any municipality can be called in

question in any Court except by way of election petition before the

Election Tribunal, sought to dismiss the present writ petition as

not maintainable.

Heard the learned counsel for the parties and perused the

material available on record.

By way of filing the present writ petition, the petitioner

challenges the conduct of elections held on 01.12.2020 in GHMC

area. While dealing with the challenge made in respect of election

process, the Hon'ble Supreme Court in Jaspal Singh Arora vs.

State of M.P. and others1 has held as under:

"...In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by

1 (1998) 9 SCC 594

an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243- ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside the election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier writ petition for the same purpose by a defeated candidate had been dismissed by the High Court."

Admittedly, in the present case, elections were held on

01.12.2020 in respect of Greater Hyderabad Municipal Corporation

and the results have also been declared. As per the judgment of

the Hon'ble Supreme Court, the present writ petition, challenging

the conduct of elections in question, is not maintainable and the

only remedy available to the petitioner is to approach the Election

Tribunal and raise all objections by filing an Election Petition. In

view of the bar contained under Article 243ZG of the Constitution

of India and the law laid down by the Hon'ble Supreme Court,

referred to supra, the writ petition under Article 226 of the

Constitution of India is not maintainable. Since the writ petition

itself is not maintainable, this Court is not inclined to go into the

merits or demerits of the allegations raised by the petitioner in this

writ petition.

Accordingly, the writ petition is dismissed. If the petitioner

is so advised, she is always at liberty to file an Election Petition

before the Election Tribunal raising all the grounds that were

raised in this writ petition.

The miscellaneous petitions pending, if any, shall stand

closed. There shall be no order as to costs.

________________________ A.ABHISHEK REDDY, J Date:11-02-2021 Tsr